Straub v. County of Maui
ORDER DENYING DEFENDANT COUNTY OF MAUI'S MOTION TO DISMISS, ECF NO. 12 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 2/7/2018. (afc)WRITTEN ORDER follows hearing held 2/5/2018 on 12 Defendant County of Maui's MOTION to Dismiss. Defendant Teena Rasmussen's Substantive Joinder to Motion to Dismiss: ECF 22 . MINUTES of hearing: ECF no. 24 , CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBERT G. STRAUB,
Civ. No. 17-00516 JMS-RLP
ORDER DENYING DEFENDANT
COUNTY OF MAUI’S MOTION
TO DISMISS, ECF NO. 12
COUNTY OF MAUI, DIRECTOR
ORDER DENYING DEFENDANT COUNTY OF MAUI’S MOTION TO
DISMISS, ECF NO. 12
Defendant County of Maui (the “County”) has moved to dismiss
Plaintiff Robert G. Straub’s (“Straub”) First Amended Complaint (“FAC”) against
the County and Teena Rasmussen (“Rasmussen”), the Managing Director of the
County Department of Economic Development (the “Department”). ECF No. 12.
The County contends that the FAC consists of “mere recitation of the elements of
each cause of action” and, therefore, should be dismissed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Def.’s Mem. at 1, ECF No. 12-1. For the
following reasons, the Motion is DENIED.
The FAC includes the following factual allegations. Straub worked
for the County for sixteen years, but not from 2008 to 2011. FAC ¶¶ 5, 8, ECF No.
8. After Mayor Alan Arakawa was elected in 2011, Straub “came back” to the
County as the Mayor’s office manager. Id. ¶ 8. Most recently, he worked in the
County’s Business Resource Center (“BRC”), under the supervision of Karen
Arakawa. Id. ¶ 5, 11.
In 2017, Straub took a 30-day family medical leave to care for his
wife, who suffers from Parkinson’s disease. Id. ¶¶ 5, 18. Four days after he
returned to work, Rasmussen fired him, ostensibly because of “budget issues.” Id.
¶¶ 5, 7. But “Rasmussen told others in the [Department] that she didn’t want
people to be off the job for more than 2 weeks and [Straub] was gone for 30 days.”
Id. ¶ 10. Additionally, Straub contends that he was replaced by a higher paid
individual, that the BRC remained at the same number of employees after he left,
and that “many County employees” received substantial raises retroactive to July
2016. Id. ¶¶ 7, 10. Straub, who is 71, also contends that he was replaced by a
“substantially younger and less qualified” individual. Id. ¶ 6.
After he was fired, Straub spoke to Mayor Arakawa and also to
Rasmussen’s “boss,” Chief of Staff Herman Andaya, who both “denied having any
involvement in the decision to terminate him and supported him remaining
employed in the Mayor’s office.” Id. ¶ 9.
Straub obtained right-to-sue letters from the Equal Employment
Opportunity Commission (“EEOC”) and the Hawaii Civil Rights Commission
(“HCRC”) in October 2017. Id. ¶ 12.
At some point, Karen Arakawa “told others that the County could not
buy t-shirts from [Straub’s] company this year, as [it] had for the past 6 years,
because of [Straub’s] claims against the County.” Id. ¶ 11.
Straub filed his original Complaint against the County in October
2017, ECF No. 1, and the FAC naming Rasmussen on November 9, 2017, ECF
No. 8. The FAC alleges four Counts: (1) interference and retaliation in violation of
the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2615(a)(1) and (2),
based on the termination of Straub’s employment; (2) interference and retaliation
under the FMLA based on the County’s “termination of purchasing t-shirts from
[Straub’s] Ultra Hawaii business”; (3) violation of the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12122(b)(4); and (4) age discrimination in
violation of Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 623(a)(1) and Hawaii Revised Statutes (“HRS”) § 378-2. FAC ¶¶ 14-21.
The County filed its Motion to Dismiss on November 24, 2017, ECF
No. 12, and Straub filed his Opposition on January 12, 2018, ECF No. 20. The
County replied on January 22, 2017. ECF No. 21. In the meantime, Rasmussen
signed a waiver of service on December 7, 2017, and on January 30, 2018,
Corporation Counsel entered an appearance for Rasmussen and filed a Substantive
Joinder to the County’s Motion on her behalf. ECF Nos. 17, 22.
A hearing was held on February 5, 2018.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Such a
dismissal is proper “based on the lack of a cognizable legal theory or the absence
of sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital Partners,
LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).
In resolving a Rule 12(b)(6) motion, the court “accept[s] as true all
well-pleaded allegations of material fact, and construe[s] them in the light most
favorable to the non-moving party.” Sateriale v. R.J. Reynolds Tobacco Co., 697
F.3d 777, 784 (9th Cir. 2012) (quoting Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010)). A “formulaic recitation of the elements of a cause of
action” will not defeat a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The complaint “must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This tenet — that the
court must accept as true all of the allegations contained in the complaint — “is
inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). But “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
The County contends that Straub’s FMLA claim based on the
termination of his employment fails because the FAC does not (1) include facts
relating to “how [Straub’s] position at the BRC, under the supervision of Manager
Arakawa, is connected to Rasmussen’s position as Managing Director of the Office
of Economic Development”; (2) “indicate if [Straub] had any on-the-job
interactions with Rasmussen”; and (3) expressly “allege that Rasmussen knew that
Plaintiff had been using FMLA leave.” Def.’s Mem. at 10-11, ECF No. 12-1.
Regarding the t-shirt sales, the County contends that the claim fails because (1) the
County’s failure to purchase t-shirts from Straub’s private business “is not an
adverse employment action,” (2) the “State and County procurement law and
policy” does not “guarantee that any vendor is entitled to a purchase contract with
the [County] indefinitely,” and (3) Straub has failed to specify any timeframe for
Karen Arakawa’s statement, to allege that she was authorized to make decisions
regarding the County’s t-shirt purchases, or to allege damages. Id. at 12; Reply at
“The FMLA creates two interrelated, substantive employee rights:
first, the employee has a right to use a certain amount of leave for protected
reasons, and second, the employee has a right to return to his or her job or an
equivalent job after using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259
F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. §§ 2612(a), 2614(a)). Two
“theories for recovery” are available under § 2615 of the FMLA — an
“interference theory” under subsection (a)(1) and a “retaliation or discrimination
theory” under subsection (a)(2).1 Sanders v. City of Newport, 657 F.3d 772, 777
(9th Cir. 2011) (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,
960 (10th Cir. 2002)). In the Ninth Circuit, § 2615(a)(1) applies to an employee
who suffers unlawful actions, including termination, as a consequence of taking
FMLA leave, whereas “§ 2615(a)(2) applies only to employees who oppose
employer practices made unlawful by [the] FMLA.” Xin Liu v. Amway Corp., 347
F.3d 1125, 1133 n. 7, 1135-36 (9th Cir. 2003) (emphasis omitted).
Section 2615(b) also addresses “interference with proceedings or inquiries,” making it
“unlawful for any person to discharge or in any other manner discriminate against any individual
because such individual” has, among other things “filed any charge, or has instituted or caused to
be instituted any proceeding, under or related to this subchapter.” Although Straub’s factual
allegations might implicate this subsection, he has asserted his claims under subsection (a) only.
See FAC ¶¶ 13-16.
In Count One of the FAC, Straub alleges that he was fired because he
took a 30-day FMLA leave. To prevail on this claim, Straub must prove that his
“taking of FMLA-protected leave constituted a negative factor in the decision to
terminate” him. Id. at 1135-36 (quoting Bachelder, 259 F.3d at 1124-25.); see also
29 C.F.R. § 825.220(c). Based on Rasmussen’s position with the County and her
alleged statement that Straub took a 30-day leave, the court can fairly infer that
Rasmussen knew of Straub’s FMLA leave. And based on Rasmussen’s statement,
the timing of Straub’s firing, and the seemingly pretextual nature of the reason he
was given for it, the court can fairly infer that Rasmussen considered Straub’s
FMLA leave as a negative factor in her employment decision. Thus, Straub has
stated a plausible claim for violation of § 2615(a)(1).
Count Two of the FAC is somewhat unclear. Straub asserts that the
County’s “termination of purchasing t-shirts from [his] Ultra Hawaii business
constitutes interference and retaliation for exercising FMLA rights, under 29
U.S.C. § 2615(a)(1) and (2),” but the only factual allegation regarding t-shirt
purchasing is Karen Arakawa’s alleged statement that “the County could not buy tshirts from [Straub’s] company . . . because of [his] claims against the County.”
Therefore, the court interprets this Count as a retaliation claim under § 2615(a)(2).
The Ninth Circuit has not yet dealt with an FMLA retaliation claim,
but other Circuits have described the necessary elements as similar to those for
Title VII and other discrimination claims — requiring a showing of: (1) protected
activity, (2) an adverse employment action, and (3) a causal link between the two.2
See, e.g., Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000)
(finding the “proscriptive provisions [of the FMLA] . . . create a cause of action
analogous to the actions for discrimination and for retaliation that are found in
Title VII and the other discrimination statutes); see also Edgar v. JAC Prods., Inc.,
443 F.3d 501, 508 (6th Cir. 2006); Morgan v. Hilti, Inc., 108 F.3d 1319, 1324
(10th Cir. 1997); cf. Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894 (9th Cir.
2005) (involving retaliation in the Title VII context).
In the Title VII context, an “adverse employment action” has been
broadly defined, and may include post-employment activity. See Burlington N. &
Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (2006) (“The scope of the
antiretaliation provision [in Title VII] extends beyond workplace-related or
employment-related retaliatory acts and harm); Robinson v. Shell Oil Co., 519 U.S.
337, 339, 345-46 (1997) (finding the term “‘employees,’ as used in § 704(a) of
Title VII . . . includes former employees,” and determining a former employee
“may bring suit against his former employer for postemployment actions allegedly
Section 704(a) sets forth Title VII’s antiretaliation provision in the following terms:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for
employment . . . because he has opposed any practice made
unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
taken in retaliation for [the former employee’s] having filed a charge with the
[EEOC]”); Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997) (“A plaintiff
may seek relief for retaliatory actions taken after her employment ends if ‘the
alleged discrimination is related to or arises out of the employment relationship.’”
(quoting Passer v. Am. Chem. Soc., 935 F.2d 322, 330 (D.C. Cir. 1991)); Ray v.
Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (citing EEOC guidance and
holding that Title VII plaintiff need only show “adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party or others
from engaging in protected activity”).
Section 2615(a)(2) itself prohibits discrimination “against any
individual for opposing any practice made unlawful by this subchapter,” not just an
employee. And Department of Labor implementing regulations state that “[a]n
employer is prohibited from discharging or in any other way discriminating against
any person (whether or not an employee) for opposing or complaining about any
unlawful practice under the [FMLA].” 29 C.F.R. § 825.220(a)(2) (emphasis
added); see also Xin Liu, 347 F.3d at 1133 (finding that Department of Labor
implementing regulations for the FMLA are entitled to deference under Chevron
USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44
In the context of a Title VII discrimination claim, the Fifth Circuit
addressed a similar post-employment action. Allen v. Radio One of Tex. II, L.L.C.,
515 F. App’x 295 (5th Cir. 2013). There, the plaintiff brought a retaliation claim
against her former employer based on that employer’s refusal “to start doing
business with her 18 months after [her] termination.” Id. at *1. Although the court
ultimately found that Plaintiff had not proved her case at trial, it did not find that
such a claim could never stand. Rather, it stated, “the significance of any given act
of retaliation will often depend upon the particular circumstances. Context
matters.” Id. at *6 (quoting Burlington N., 548 U.S. at 69).
Here, Straub has alleged that he engaged in a protected activity by
taking FMLA leave, and he alleges that the County retaliated by refusing to
continue its six-year practice of purchasing t-shirts from his business — an action
that conceivably could “deter [an individual] from engaging in protected activity.”
Ray, 217 F.3d at 1242-43. Karen Arakawa’s alleged statement expressly links the
County’s action to the protected activity; therefore, whether she was authorized to
make procurement decisions herself or whether Straub had a “right” to a continued
contract under the County’s procurement rules, are immaterial to the Motion
before the court. And, although the FAC asks only for reinstatement and back pay
within Count Two itself, FAC ¶ 16, it also requests compensatory damage
generally, FAC ¶ 21, and the court can infer that the loss of revenue from the sale
Straub otherwise may have made would result in financial loss. Straub has stated a
plausible claim for retaliation under § 2615(a)(2).
To prevail on his claim for age discrimination, Straub will eventually
have to prove that he was (1) at least forty years old, (2) performing his job
satisfactorily, (3) discharged, and (4) either replaced by a substantially younger
employee with equal or inferior qualifications or discharged under circumstances
otherwise giving rise to an inference of age discrimination. See Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
The County contends that Straub insufficiently alleges this claim
because he alleges in a merely conclusory fashion that he was qualified for and
adequately performing his job and that his replacement was significantly younger
than he. Def.’s Mem. at 4-5. The court disagrees.
Not only does Straub allege that he was qualified for his position and
performing satisfactorily, those facts may be reasonably inferred based on Straub’s
long-time employment with the County and the County’s own asserted reason for
firing him — “budget issues,” not performance-related concerns. And contrary to
the County’s assertion, the allegation that the Mayor and Chief of Staff supported
his continued employment, even absent an express allegation that they had firsthand knowledge of Straub’s job performance, further supports Straub’s claim that
he was qualified for and adequately performing his job. Straub’s allegations on
these points are not merely conclusory, but are plausible based on reasonable
inferences drawn from specific factual allegations.
Further, the case upon which the County relies is inapposite. In Hicks
v. Dollar Gen. Mkt, 2017 WL 874576 (D. Nev. Feb. 8, 2017), the plaintiff claimed
that she had been unlawfully refused a promotion, and the court dismissed because
she had failed to allege facts supporting an inference that she was more qualified
than her competition for the position. Id. at *2. But here, where no promotion was
involved, the County has neither argued nor cited authority showing, that Straub
must show greater qualification than his replacement for the position he held, only
that he was qualified, which he has sufficiently alleged.
Finally, Straub’s failure to allege his replacement’s age does not merit
dismissal. Straub has alleged that he was replaced by a specific individual whom
he claims is “significantly younger” than he, although he doesn’t know the
individual’s exact age. 3 Opp’n at 15-16. None of the County’s authority suggests
that a complaint must be dismissed unless an exact age difference is alleged.
At oral argument, there was some suggestion that Straub’s replacement is only three
years younger than he. This fact, however, is not in the record, and the court declines to consider
it at this stage in the litigation.
An association-discrimination claim under the ADA requires proof
that the plaintiff was qualified to perform his or her job, the employer knew the
employee was associated with a disabled person, and the employer took an adverse
employment action based on that association. See Austin v. Horizon Human Servs.
Inc., 2014 WL 1053620, at *2 (D. Ariz. Mar. 19, 2014).
The County contends that Straub’s ADA claim fails because he did
not allege “a plausible causal connection between his association with his wife and
the termination of his employment.” Def.’s Mem. at 13. But the County relies on
a summary judgment case with wildly different facts. See Wong v. Bd. of Educ. of
Cmty. Consol. Sch. Dist. 15, 2015 WL 1117715 at *9 (N.D. Ill. Mar. 10, 2015)
(finding no prima facie evidence of association discrimination when school
principal’s note stating she “had told [the plaintiff teacher] that [principal’s] friend
had had a depressed boyfriend” was the only evidence that the school board knew
plaintiff’s husband suffered from that disability). And a plausible connection
exists between Straub’s firing and his association with his wife based on the same
facts that make his first FMLA claim plausible — the timing of his firing,
Rasmussen’s statement regarding her desire for shorter leave time, and the
seemingly pretextual nature of the explanation she gave for the termination.
Moreover, although the County argues that dismissal is appropriate because Straub
did not expressly allege that Rasmussen knew of Straub’s wife’s disability, a
reasonable inference of Rasmussen’s knowledge may be drawn based on her
position within a small county government. See Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief . . . [is] a
context specific task that requires the . . . court to draw on its judicial experience
and common sense.”)
Straub has made a plausible claim for violation of the ADA.
Although Straub’s complaint lacks certain factual detail, it states
plausible claims for relief, and therefore, is not so deficient that dismissal is
warranted under Rule 12(b)(6). The County’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 7, 2018.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Straub v. County of Maui, Civ. No. 17-00516 JMS-RLP, Order Denying County of Maui’s
Motion to Dismiss, ECF No. 12
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